Com. v. Messmer
Decision Date | 01 December 2004 |
Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Bernard MESSMER, Appellant. |
Court | Pennsylvania Superior Court |
Candace Cain, Pittsburgh, for appellant.
Michael W. Streily, Deputy Dist. Atty., Karen T. Edwards, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County, which sentenced Appellant to two and one-half to five and one-quarter years' imprisonment after Appellant pleaded guilty to first-degree misdemeanor driving under the influence of alcohol ("DUI"), 75 Pa.C.S.A. § 3731, and driving while his operator's privileges had been suspended — DUI related, 75 Pa.C.S.A § 1543(b). Appellant first argues that his sentence is illegal because it exceeds the statutory maximum of five years' imprisonment for a first degree misdemeanor, an argument with which the Commonwealth says it is constrained to agree. The trial court disagrees, explaining that Appellant's sentence aggregates the five year DUI sentence and the 90 day driving with suspended license sentence. Appellant also challenges the discretionary aspects of his sentence. We vacate and remand for correction of a defective written sentencing order.
¶ 2 On April 24, 2002, fifty-seven year old Appellant pleaded guilty to two counts of DUI, one count of careless driving, and one count of driving with a suspended license. Represented by retained counsel at his guilty plea colloquy, Appellant stated that he understood the maximum penalties he faced under his plea were two and one-half to five years' imprisonment for DUI, and ninety days' imprisonment for driving with a suspended license sentence. N.T. 4/24/02 at 2-3. Appellant's subsequent health problems and counsel's apparent disbarment caused repeated postponement of sentencing until June 16, 2003, at which time Appellant was represented by newly retained counsel.
¶ 3 At the sentencing hearing, the court expressed concern with Appellant's pre-sentence report, which showed five prior DUIs and a simple assault in the twenty-four years prior to the present offenses. It was the court's opinion that the report proved both Appellant's unwillingness to address a serious drinking problem and his callous disregard for public safety:
N.T. 6/16/03 at 11-12, 13-14. This sentence was considerably higher than the standard guideline range sentence of RS to nine months with a statutory mandatory minimum sentence of ninety days applicable to a misdemeanor one DUI with a prior record score of two.3 ¶ 4 Appellant filed a timely post sentence motion to modify sentence "to be more reflective of the mandatory minimum sentence of thirty days" imprisonment. Petition for Modification of Sentence at 2. The allegedly poor representation of original counsel, Appellant's health problems, and Appellant's relinquishment of his vehicle were cited in support of Appellant's motion. The court denied the motion, and this appeal followed.
¶ 5 Appellant raises the following issue:
I. IS MR. MESSMER'S SENTENCE OF 2 1/2 TO 5 1/4 YEARS TOTAL CONFINEMENT, WHICH IS BEYOND THE STATUTORY MAXIMUM FOR MISDEMEANOR 1 DUI, LEGAL, SUPPORTED BY THE RECORD, NOT EXCESSIVE AND UNREASONABLE, AND WAS COUNSEL INEFFECTIVE FOR FAILURE TO PRESERVE THE ISSUES FOR APPEAL, WHICH CAN BE ADDRESSED NOW UNDER GRANT?
Brief for Appellant at 4. Appellant thus challenges both the legality and the discretionary aspects of his sentence.
¶ 6 The entry of a guilty plea constitutes a waiver of all defenses and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal sentence. Commonwealth v. Murray, 836 A.2d 956 (Pa.Super.2003). So long as jurisdictional requirements are met, an illegal sentence can never be waived, Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super.2001), and must be vacated. Commonwealth v. Alexander, 811 A.2d 1064, 1066 (Pa.Super.2002). A sentence that exceeds the statutory limits of an offense is an illegal sentence which the court has no jurisdiction to impose. Commonwealth v. Archer, 722 A.2d 203 (Pa.Super.1998).
¶ 7 Appellant claims that his five and one-quarter year maximum sentence exceeds the maximum sentence permissible for a first-degree misdemeanor DUI as provided for in 18 Pa.C.S.A. § 106. We must agree. The sentencing transcript reveals the court's obvious intent to impose consecutive sentences for DUI and driving with a suspended license, amounting to an aggregate sentence of five and one-quarter years, but the court failed to incorporate that intent clearly on its signed sentencing order. The order imposes the five and one-quarter year sentence on the DUI count alone, and imposes only a $1,000 fine for driving with a suspended license. Written Sentencing Order dated 6/16/03. "It is well-settled that the signed sentencing order takes precedence over oral statements of the sentencing court not incorporated into that order." Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235, 1243 (1994). Accordingly, the defective sentencing order constrains us to vacate judgment of sentence and remand for resentencing.
¶ 8 In the interest of judicial economy, however, we choose to address Appellant's challenge to the discretionary aspects of his sentence, for the trial court's present opinion leaves no doubt that it will impose the statutory maximum sentence for Appellant's DUI conviction on remand, See Pa.R.A.P. 1925(a) opinion, and both parties have fully briefed the issue. We note initially that Appellant's guilty plea does not bar his discretionary challenge because there was no agreement as to the sentence Appellant would receive. See Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.Super.2001)
(. )
¶ 9 The particular discretionary challenges raised here, however, are raised for the first time on appeal, prompting Appellant to preserve them for direct review by couching them in an ineffective assistance of prior counsel claim. Nevertheless, ineffective assistance claims are generally deferred until collateral review as "oftentimes, demonstrating trial counsel's ineffectiveness will involve facts that are not available on the record." Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). One exception to this rule occurs where the evidentiary record is complete and enables the trial court to file a Pa.R.A.P. 1925(a) opinion addressing the merits of the ineffectiveness claim; appellate review on direct appeal is then appropriate. Commonwealth v. Causey, 833 A.2d 165 (Pa.Super.2003). In the case sub judice, a complete record and responsive trial court opinion permits review of this claim on direct appeal.
¶ 10 In order to establish a claim of ineffective assistance of counsel, a defendant must show that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. McAfee, 849...
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